Citation Nr: 1707387
Decision Date: 03/09/17 Archive Date: 03/17/17
DOCKET NO. 12-20 934 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Denver, Colorado
THE ISSUE
Entitlement to a rating in excess of 30 percent for tension headaches.
REPRESENTATION
Veteran represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
The Veteran
ATTORNEY FOR THE BOARD
K. Kardian, Associate Counsel
INTRODUCTION
The Veteran served on active duty from March 1976 to June 2006.
This matter is before the Board of Veteran's Appeals (Board) on appeal from a March 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado.
A March 2016 Board decision denied the Veteran's claim for entitlement to a rating in excess of 30 percent for tension headaches. A November 2016 order of the United States Court of Appeals for Veterans Claims (Court) implemented a November 2016 Joint Motion for Partial Remand, vacating and remanding that portion of the March 2016 Board decision that denied entitlement to a rating in excess of 30 percent for tension headaches. As such, the issue of entitlement to a rating in excess of 30 percent for tension headaches is again before the Board.
The Board has reviewed the electronic records maintained in Virtual VA and Veterans Benefits Management System (VBMS) to ensure consideration of the totality of the evidence.
FINDING OF FACT
The Veteran's tension headaches most closely approximate prostrating attacks occurring on average once a month over the last several months; and are not characterized by very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability.
CONCLUSION OF LAW
The criteria for a rating in excess of 30 percent for tension headaches have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2014); 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.2, 4.7, 4.124a, Diagnostic Code 8100 (2016).
REASONS AND BASES FOR FINDING AND CONCLUSION
I. Veterans Claims Assistance Act of 2000 (VCAA)
VA has met all statutory and regulatory notice and duty to assist provisions with respect to the Veteran's claims. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2016).
Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the Veteran and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim, the evidence VA will obtain on the Veteran's behalf, and the evidence the Veteran is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA notice requirements apply to all five elements of a service connection claim: (1) veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). The notice must be provided to the Veteran prior to the initial adjudication of his claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004).
In this case, the appeal arises from the Veteran's disagreement with the initial evaluation following the grant of service connection. Once service connection is granted the claim is substantiated, additional notice is not required, and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). No additional discussion of the duty to notify is therefore required.
During the hearing, the VLJ clarified the issues, explained an increased rating claim, identified potential evidentiary defects and held the file open for 90 days. The Veteran demonstrated through his testimony that he had actual knowledge concerning what is required to substantiate his claims. The actions of the VLJ supplement VCAA and comply with 38 C.F.R. § 3.103.
The duty to assist includes assisting the claimant in the procurement of relevant records. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). The RO associated the Veteran's service treatment records (STRs) with the claims file. In addition, the RO associated the Veteran's VA and identified Department of Defense (DoD) treatment records with the claims file. No other relevant records have been identified and are outstanding. As such, the Board finds VA has satisfied its duty to assist with the procurement of relevant records.
The duty to assist also includes providing a medical examination or obtaining a medical opinion when necessary to make a decision on a claim, as defined by law. See 38 C.F.R. § 3.159(c)(4). In this case, the Veteran was provided with VA examinations in March 2010 and April 2015. These examinations were adequate because the examiners considered and addressed the Veteran's contentions, reviewed the claims file in conjunction with the examinations, and conducted thorough medical examinations of the Veteran. Based on the foregoing, the Board finds the examination reports and opinions to be thorough, complete, and sufficient bases upon which to reach a decision on the Veteran's increased rating claim. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-05 (2008); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Since VA has obtained all relevant identified records and provided adequate medical examinations, its duty to assist in this case is satisfied.
II. Schedular Rating
Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1.
In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1 (2013); Peyton v. Derwinski, 1 Vet. App. 282 (1991).
Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be staged. Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Here, the symptoms for tension headaches have not materially changed and will not be addressed as staged ratings.
A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7.
The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of the symptomatology of the other condition. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994).
III. Analysis
The Veteran contends he is entitled to a rating in excess of 30 percent for his service-connected tension headaches. The Veteran's tension headaches are rated as 30 percent disabling pursuant to 38 C.F.R. § 4.124a, Diagnostic Code 8100 (2016).
A 30 percent disability evaluation is assigned where there are characteristic prostrating attacks occurring on average once a month over the last several months. For a higher, 50 percent disability evaluation to be warranted, there must be migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 38 C.F.R. § 4.124a, Diagnostic Code 8100.
The Board notes that the Rating Schedule does not define "prostrating." "Prostration" has been defined as "complete physical or mental exhaustion." Merriam-Webster's New Collegiate Dictionary 999 (11th ed. 2007). "Prostration" has also been defined as "extreme exhaustion or powerlessness." Dorland's Illustrated Medical Dictionary 1534 (32nd ed. 2012). According to Stedman's Medical Dictionary, 27th Edition (2000), p. 1461, "prostration" is defined as "a marked loss of strength, as in exhaustion." See Eady v. Shinseki, No. 11-3223, 2013 WL 500460 (Vet. App. Feb. 12, 2013) (the Board adopts the Court's definition as its own).
Additionally, the phrase "productive of severe economic adaptability" has not been clearly defined by regulations or by case law. The United States Court of Appeals for Veterans Claims (Court) has noted that "productive of" can either have the meaning of "producing" or "capable of producing." Pierce v. Principi, 18 Vet. App. 440, 445 (2004). Thus, headaches need not actually "produce" severe economic inadaptability to warrant the 50 percent rating. Id. at 445-46. Further, "economic inadaptability" does not mean unemployability, as such would undermine the purpose of regulations pertaining to TDIU. Id. at 446; see also 38 C.F.R. § 4.16. The Board notes, however, that the headaches must be, at minimum, capable of producing "severe" economic inadaptability.
Based on the evidence of record, the Board finds that the preponderance of the evidence is against finding that an increased rating in excess of 30 percent is warranted for the Veteran's tension headaches. At different times during the period on appeal, the Veteran has reported he experiences headaches with symptoms including throbbing, aching, nausea, and increased sensitivity to light that significantly limits his functioning. See September 2, 2009 treatment records. At the November 2015 video conference hearing, the Veteran testified to experiencing headaches 10 years prior to his retirement from service which presented in the afternoons as pain across his forehead, and would progress to nausea, sensitivity to light and noise and would require him to go rest in a quiet room. The Veteran reported rest and sleep would relieve his symptoms. See November 2015 hearing transcript. The Veteran has reported experiencing approximately 4 to 5 attacks monthly, which would sometimes occur twice a week and at other times several weeks would pass before another attack. The Veteran reported his headaches usually resolve within a 24 hour period. Id. In addition the Veteran has reported that when he experiences a headache he must sleep and is completely shut down for 10 hours at a time. See July 2012 VA Form 9. The Veteran is competent to testify to such lay observable symptomatology, and there is no evidence that these statements are not credible. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). As such, these statements are entitled to probative value as to the severity of his headaches during this appeal.
The Veteran was provided with a VA examination in March 2010. The Veteran reported experiencing headaches 4 to 5 times a month, lasting 8 hours, during which minimal activity is possible. See March 2010 VA examination. The examiner noted tension headaches with moderate attacks. Id.
Next, the Veteran was provided with a VA examination in April 2015. The Veteran reported experiencing ongoing tension headaches typically in the afternoons, which are relieved with sleep and his symptoms, improve after several hours and are gone by the following morning. See April 2015 VA examination. The Veteran reported experiencing sharp pain across his forehead, which occasionally results in vomiting and bowel movements. Pain level is 10/10. The VA examiner noted symptoms including nausea, vomiting, sensitivity to light and sound, and changes in vision. Prostrating attacks once a month were noted; those were not very prostrating and were not prolonged attacks of pain productive of severe economic inadaptability. The examiner noted the Veteran's headaches impact his ability to work, as the severity of his attack would make it hard to continue working, as he would need to take a nap. Id.
There is no evidence that these VA examiners were not competent or credible, and as the examination reports were based on accurate facts and objective examinations of the Veteran, they are entitled to significant probative weight in determining the severity of the Veteran's headaches during the course of the appeal. Nieves-Rodriguez, 22 Vet. App. 295.
Department of Defense (DoD) and VA treatment records have been associated with the claims file. A private DBQ from January 2016 has been associated with the claims file. The Veteran reported typically experiencing one severe headache weekly, and at times more frequently sometimes up to 4 a week. See January 2016 DBQ. The private physician reported ongoing frontal pain that worsened with physical activity and symptoms including nausea, sensitivity to light and sound. It was noted that occasionally the Veteran will need to sleep and the headaches resolve overnight. Typical headaches resolve within 24 hours, but occasionally last longer. The physician noted the Veteran does not have very frequent prostrating and prolonged headache attacks. The examiner noted the Veteran has characteristic prostrating attacks of headache pain more frequently than once per month. The Veteran continues to be treated with medications included Imitrex, Topamax, and Fiorinal. The physician noted that the Veteran's headache condition does not impact his ability to work. However, it was noted that while the Veteran is not currently employed, headaches of this type could require absences from work for up to a day. The physician noted the Veteran's headaches are a long standing, well managed problem with unpredictable fluctuations in symptoms. Id.
April 2010 treatment records note the Veteran's headaches are well controlled with Topamax. See April 13, 2010 DoD treatment record. March 2011 treatment records note ongoing complaints of headaches. See March 10, 2011 DoD treatment record. April 2011 treatment records noted an increased severity of headaches in the past 1 to 2 weeks, and the Veteran reported he has not been regularly taking his Topamax. See April 13, 2011 DoD treatment record.
VA treatment records note ongoing reports of headaches. July 2009 treatment records noted ongoing headaches sometimes with light sensitivity and nausea, which require sleep to improve. See July 7, 2009 VA treatment record. September 2009 treatment records note severe headaches with nausea and increased light sensitivity, that significantly limit the Veteran's functioning. See September 2, 2009 VA treatment record.
Based on the lay and medical evidence of record, the Board finds that the Veteran's headaches do not more nearly approximate the level of severity contemplated by a 50 percent rating, as at no point during the period on appeal has the evidence shown a 50 percent rating is warranted. The Board notes the Veteran's contentions regarding his ongoing symptoms and increased severity of his headaches during the appeal. In the November 2015 video conference, the Veteran testified to experiencing 4 to 5 headaches monthly presenting in the afternoons as pain across his forehead, and would progress to nausea and sensitivity to light and noise. The Veteran reported rest and sleep would relieve his symptoms. See November 2015 hearing transcript. The Veteran reported these attacks would sometimes occur twice a week and at other times several weeks would pass before another attack. See November 2015 hearing transcript. The Veteran is competent to testify to such lay observable symptomatology. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).
However, such lay evidence, even when accepted as accurate does not establish a level of disability contemplated by a higher evaluation. The March 2010 VA examiner noted the Veteran's attacks had a moderate effect on his occupation and daily activities. The April 2015 VA examiner noted the Veteran experiences headaches in the afternoon, with vomiting, sensitivity to light and sound, and changes in vision, which are relieved with sleep and his symptoms improve after several hours and are resolved by the following morning. The April 2015 VA examiner noted the Veteran's headaches would make it difficult to continue working during an attack. The January 2016 private opinion noted the Veteran's headaches typically resolve within 24 hours. The private physician noted the Veteran has characteristic prostrating attacks occurring more frequently than once per month, but he does not have very frequent prostrating and prolonged attacks. The private physician noted the Veteran's headaches do not impact his ability to work, however, if employed these headaches could require absences from work up to a day.
In order to warrant higher 50 percent evaluation headaches must be very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. There is no indication that the Veteran's headaches, at any time during the appeal period, have been characterized by completely prostrating and prolonged attacks that are productive of severe economic inadaptability. The Board notes that the Veteran testified that he is no longer working, at least in part due to his headaches. However, there is no evidence that the Veteran's headaches are very frequent completely prostrating and prolonged attacks. The VA examiner in March 2010 noted the Veteran experienced moderate attacks, and the April 2015 examiner noted the Veteran's headaches were not very prostrating and not prolonged attacks of pain productive of severe economic inadaptability. Further, as to the frequency of the Veteran's headaches the January 2016 private opinion noted the Veteran has characteristic prostrating attacks of headache pain more frequently than once per month, however, noted that the Veteran did not have very frequent prostrating and prolonged attacks. See January 2016 private opinion. The private physician noted occasionally the Veteran may need to sleep before his headache goes away overnight.
Next, there is no evidence of record that the Veteran's headaches are productive of severe economic inadaptability. The Veteran testified in November 2015 that after retiring in 2006 he had a home business for a period of time, but is not presently employed, and that his headaches would affect his employment, if he were employed. See November 2015 hearing transcript. The April 2015 VA examiner noted the Veteran's headaches impact his ability to work, as during an attack he would need to take a nap. In addition the January 2016 private DBQ noted that the Veteran, if employed, could require absences form work for up to a day. While the Veteran and VA and private examinations have noted that his headaches could potentially impact employment, there is no evidence to indicate that the Veteran's headaches are productive of severe economic inadaptability. The examiners have noted that the Veteran during an attack would need to rest and as a result miss employment, for up to a day. The Veteran has reported experiencing attacks 4 to 5 times a month, and as such if these attacks warranted missing a day of work the Board does not find such to be productive of severe economic inadaptability. As such, an increased 50 percent rating is not warranted. In considering, which disability evaluation shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Based on the evidence of record, the Veteran's symptoms support that a 30 percent rating, but no higher, is warranted.
All potentially applicable Diagnostic Codes have been considered. See Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). The preponderance of the evidence is against increased ratings in excess of 30 percent for the Veteran's service-connected headaches. As such, the benefit-of-the-doubt doctrine is inapplicable. 38 C.F.R. § 4.3. For these reasons, the claim is denied.
V. Extraschedular Ratings
Extraschedular consideration involves a three step analysis. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, 572 F.3d 1366 (Fed. Cir. 2009). The first element requires a finding that the evidence "presents such an exceptional or unusual disability picture that the available schedular evaluations for that service-connected disability are inadequate." See id. at 115. In order to determine whether a disability is "exceptional or unusual," there "must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability." Id. "[I]f the [rating] criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, [and] the assigned schedular evaluation is, therefore adequate, and no referral is required." Id.
The first Thun element is not satisfied here. The Veteran's headaches are manifested by headaches 4 to 5 times a month, typically in the afternoons, which are relieved with sleep and usually symptoms improve after several hours and are gone by the following morning. The Veteran reports symptoms including nausea, vomiting, sensitivity to light and sound and changes in vision. These signs and symptoms, and their resulting impairment, are specifically contemplated by the rating schedule as part of the rating schedule for miscellaneous diseases, migraine. See 38 C.F.R. § 4.124a, Diagnostic Code 8100.
The Board concludes that the schedular rating criteria reasonably describe the Veteran's disability picture. While some of the Veteran's symptoms are not directly contemplated by the rating criteria, such as sleeping to relieve his symptoms and the unpredictability of his headaches, they are inherently contemplated by the criteria. The Veteran reports ongoing pain, nausea and sensitivity to light and sound related to his headaches which was clearly contemplated in the currently assigned disability evaluations. In short, there is nothing exceptional or unusual about the Veteran's headaches because the rating criteria reasonably describe his disability level and symptomatology. Thun, 22 Vet. App. at 115. Therefore, referral for extraschedular consideration is not warranted.
Finally, a Veteran may be awarded an extraschedular rating based upon the combined effect of multiple conditions in an exceptional circumstance where the evaluation of the individual conditions fails to capture all the service-connected disabilities experienced. Johnson v. McDonald, 762 F.3d 1362 (2014). In this case, the Veteran is service-connected for obstructive sleep apnea rated at 50 percent, tension headaches rated at 30 percent, gastroesophageal reflux disease (GERD) rated at 30 percent, degenerative joint disease (DJD) left shoulder rated at 10 percent, right ankle sprain with DJD rated at 10 percent, cervical strain rated at 10 percent, lumbar sprain rated at 10 percent, left knee instability rated at 10 percent, left knee arthritis rated at 10 percent, tinnitus rated at 10 percent, left lower rib myositis rated noncompensable, hypertension rated noncompensable, erectile dysfunction rated noncompensable, and right ear hearing loss rated noncompensable. The Veteran has not alleged that his currently service-connected disabilities combine to result in additional disability or symptomatology that is not already contemplated by the rating criteria for each individual disability.
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ORDER
Entitlement to a disability evaluation in excess of 30 percent for tension headaches is denied.
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H. N. SCHWARTZ
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs